Citation NR: 9604308
Decision Date: 02/21/96 Archive Date: 03/07/96
DOCKET NO. 94-04 786 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to restoration of a 40 percent evaluation for
postoperative residuals, lumbar laminectomy, L3-L5, for
herniated disc and spinal stenosis, currently evaluated as 20
percent disabling.
REPRESENTATION
Appellant represented by: AMVETS
ATTORNEY FOR THE BOARD
B. A. Hines, Associate Counsel
INTRODUCTION
The appellant’s active military service extended from January
1980 to April 1990.
This matter came before the Board of Veterans’ Appeals
(Board) on appeal from a September 1992 rating decision by
the Department of Veterans Affairs (VA) Regional Office (RO)
in St. Petersburg, Florida, which reduced the appellant’s 40
percent disability rating for his service-connected, status
post laminectomy L3-L4 and L4-L5 for herniated pulposus and
spinal stenosis, to 20 percent disabling.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that his service-connected low back
condition is of sufficient severity so as to warrant
restoration of the previously assigned 40 percent disability
rating. He argues that the medical evidence of record does
not establish sustained improvement of his disability such as
to justify the reduction.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the appellant’s claims
folder. Based on its review of the relevant evidence in this
matter, and for the following reasons and bases, it is the
decision of the Board that the preponderance of the evidence
is against restoration of the previously assigned 40 percent
schedular disability rating.
FINDINGS OF FACT
1. In a July 1990 rating decision, service connection was
granted for status post laminectomy L3-L4 and L4-L5 for
herniated nucleus pulposus and spinal stenosis.
2. In a September 1992 rating decision, the assigned
disability rating for the appellant’s service-connected,
status post laminectomy L3-L4 and L4-L5 for herniated nucleus
pulposus and spinal stenosis, was reduced to 20 percent
disabling.
3. There was sufficient evidence of record demonstrating
improvement of the service-connected disability to support
the reduction in the schedular rating to 20 percent.
CONCLUSION OF LAW
Entitlement to restoration of a prior 40 percent disability
rating for a low back condition is not warranted. 38
U.S.C.A. §§ 1155, 5107 (West 1993); 38 C.F.R. §§ 3.344, 4.59,
4.71a, Diagnostic Code 5293-5292 (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Board, in reaching its decision in accordance with the
provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed
and considered all relevant evidence and material of record
incorporated in the appellant's claims folder and its
attachments.
Further, the Board finds that the appellant has satisfied his
statutory burden of submitting evidence which is sufficient
to justify a belief that his claim is “well-grounded.”
38 U.S.C.A. § 5107(a) (West 1991) and Murphy v. Derwinski,
1 Vet.App. 78 (1990). The Board also finds that the
appellant’s claim has been adequately developed for appellate
purposes by the RO and that it may therefore proceed to
disposition of the matter.
The appellant is seeking restoration of a previously assigned
disability rating of 40 percent for his service-connected,
post-operative residuals, lumbar laminectomy, L3-L5, for
herniated disc and spinal stenosis.
The Board will first discuss the appellant’s pertinent
medical history.
Medical History
The service medical records reveal that the appellant was
treated repeatedly for recurrent intermitted low back pain
following back injuries sustained while in military service.
He was hospitalized in July 1989 and underwent a
decompression lumbar laminectomy L3-L5. The diagnosis was
herniated nucleus pulposus, lumbar L3-L4 and L4-L5. Post-
operatively, the appellant did well. He was prescribed pain
medication and placed on convalescent leave. Subsequently,
he underwent treatment for recurrent low back pain. In
January 1990, he received a medical discharge from service
for chronic low back pain with recurrent acute episodes and
herniated nucleus pulposus.
A VA examination was conducted in May 1990. He complained of
almost constant back pain and of bilateral intermittent pain
in the hips, knees, ankles, hands, wrists and elbows. He
reported occasional numbness in the feet and lower legs, and
some burning and tingling. The examiner observed that the
appellant had difficulty changing positions from sitting to
lying and vice versa. His flexion was approximately 30
degrees without noticeable pain. His hyperextension was
approximately 15 degrees with a loud pop and some pain. The
diagnoses were status post-operative surgery, lumbosacral
spine, for degenerative disc disease and spinal stenosis; and
possible osteo-arthritis, multiple joints.
Another VA examination was conducted in August 1990. The
diagnosis was status post-laminectomy, L3-L4, herniated
nucleus pulposus and spinal stenosis.
The most recent VA examination was conducted in August 1992.
The appellant complained of low back pain that varied in
severity. He reported that his condition worsened with
prolonged sitting, prolonged standing, bending, lifting,
twisting, and stooping. He also reported numbness and
tingling in both feet. The examination report showed a well
healed surgical scar in the mid-line of the lower lumbar
region. His gait was normal. He was able to squat and to
performed a satisfactory heal and toe walk. There were no
paravertebral muscle spasms, but there was generalized
tenderness to palpation of the lumbar region. He
demonstrated no more than 55 degrees flexion and 25 degrees
extension of the lumbar spine. There was pain on motion of
the back. Supine straight leg raise was negative for
reproduction of radicular complaints. However, he had a
marked low back pain in raising the right leg. Reflexes and
sensation were intact. The diagnosis was chronic lumbar
syndrome; post-operative laminectomy.
Analysis
In evaluating the issue of restoration of the previously
assigned 40 percent disability rating, the Board considers
the entire record of pertinent medical evidence at the time
of the rating reduction. The medical findings are compared
to the criteria in the VA Schedule for Rating Disabilities.
38 C.F.R. Part 4 (1994). In so doing, it is the Board’s
responsibility to weigh the evidence. Gilbert v. Derwinski,
1 Vet.App. 49 (1990). The Board is keenly aware of its
responsibilities when a disability rating has been reduced.
Schafrath v. Derwinski, 1 Vet.App. 589 (1991).
Reduction in assigned disability ratings is governed by the
provisions of 38 C.F.R. § 3.344 (1994), concerning
stabilization of disability evaluations. In general, under
that section, ratings that have continued for long periods of
time (5 years or more) or disorders subject to temporary or
episodic improvement will not be reduced on any one
examination, except in those instances where all the evidence
of record clearly warrants the conclusion that sustained
improvement has been demonstrated. 38 C.F.R. § 3.344(a)
(1994). However, where a rating has not continued for
5 years, or the disability has not stabilized and is likely
to improve, reexamination disclosing improvement will warrant
reduction in the rating. 38 C.F.R. § 3.344(c) (1994).
The schedular criteria for limitation of motion of the lumbar
spine call for a 10 percent disability evaluation for a
slight limitation, a 20 percent disability evaluation for a
moderate limitation; and a 40 percent disability evaluation
for a severe limitation. 38 C.F.R. 4.71a Diagnostic Code
5292 (1994).
The schedular criteria for intervertebral disc syndrome call
for a 0 percent disability evaluation for postoperative,
cured symptomatology; a 10 percent disability evaluation is
warranted for mild symptomatology; a 20 percent disability
evaluation is warranted for moderate, recurring attacks; a 40
percent disability evaluation is warranted for severe
recurring attacks, with intermittent relief; and a 60 percent
disability evaluation is warranted for pronounced symptoms,
compatible with sciatic neuropathy with characteristic pain
and demonstrable muscle spasm, absent ankle jerk or other
neurological findings appropriate to site of diseased disc
and little intermittent relief. 38 C.F.R. § 4.71a,
Diagnostic Code 5293 (1994).
Terms, such as “slight”, “moderate” and “severe”, are not
defined in VA regulations. Rather than applying an
inflexible formula, it is incumbent upon the Board to arrive
at an equitable and just decision after having evaluated the
evidence. 38 C.F.R. § 4.6 (1994).
After having reviewed all of the relevant medical evidence,
the Board is of the opinion that the appellant was
appropriately reduced for his service-connected,
post-operative residuals, lumbar laminectomy, L3-L5, for
herniated disc and spinal stenosis to the 20 percent
disability rating level. The evidence of record sufficiently
demonstrates improvement in the appellant’s service-
connected, post-operative residuals, lumbar laminectomy, L3-
L5, for herniated disc and spinal stenosis and therefore,
justified a reduction of the appellant’s disability rating to
a level appropriate to the extent of the disability.
Schafrath v. Derwinski, 1 Vet.App. 589 (1991). The 40
percent evaluation was in effect for two years, based on a
May 1990 VA examination report which showed flexion to 30
degrees and hyperextension to 15 degrees with pain.
Objectively, the clinical data in the recent August 1992
neurologic examination reveals some limitation of motion of
the lumbar spine, reported as forward flexion to 55 degrees
(normal 95 degrees) and backward extension to 25 degrees
(normal 35 degrees), with some pain at the extremes of
motion. Such limitation of motion of the lumbar spine would
be within the moderate range and would not be described as
severe. In essence, the Board concludes that severe
limitation of motion of the lumbar spine has not been
demonstrated. Furthermore, the Board acknowledges there was
painful motion of the back and marked low back pain with
raising the right leg. However, his straight leg raise was
negative for radicular complaints, his reflexes and sensation
were intact, and no muscle spasms were noted. Under the
circumstances, the pathology consistent with severe
intervertebral disc syndrome, specifically severe recurring
attacks, with intermittent relief, has not been shown.
Therefore, the Board concludes that the preponderance of the
evidence is against the appellant’s claim for restoration of
a 40 percent rating. The Board finds that the disability
picture presented at the time of reduction did show
improvement and did not show functional impairment such as to
warrant greater than a 20 percent disability rating. 38
C.F.R. §§ 4.40, 4.45, 4.59 (1994).
Since the preponderance of the evidence is against the
restoration of a 40 percent evaluation for post-operative
residuals, lumbar laminectomy, L3-L5, for herniated disc and
spinal stenosis, the benefit of the doubt doctrine is
inapplicable. 38 U.S.C.A. § 5107(b) (West 1992).
Accordingly, the Board finds that the RO’s reduction in the
assigned disability from 40 percent to 20 percent based on
Diagnostic Codes 5293-5292 was justified by the medical
evidence of record.
ORDER
Restoration of a 40 percent disability rating for post-
operative residuals of lumbar laminectomy, L3-L5, for
herniated disc and spinal stenosis is denied.
KENNETH R. ANDREWS, JR.
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
(Continued on next page)
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on appeal
is appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the agency
of original jurisdiction on or after November 18, 1988.
Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402
(1988). The date which appears on the face of this decision
constitutes the date of mailing and the copy of this decision
which you have received is your notice of the action taken on
your appeal by the Board of Veterans' Appeals.
- 2 -